May 15, 2013

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Adoptive Couple v. Baby Girl: How should SCOTUS Rule?

SCOTUS explores the intersection of state adoption law and the Indian Child Welfare Act.

UPDATE:On June 25, 2013, in a 5-4 opinion, SCOTUS ruled that under these facts, ICWA did not block the adoption of Baby Girl by a non-Indian couple. Read the opinion in Adoptive Couple v. Baby Girl.

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How is “Parent” defined under the law?

This is the question before SCOTUS in Adoptive Couple v. Baby Girl. At issue is a conflict between state adoption law and federal law under the Indian Child Welfare Act (“ICWA”). 25 U.S.C. § 1901. ICWA was passed by Congress in 1978 to counteract negative adoption practices that failed to address the unique sociopolitical status of Native American children. See, Adoptive Couple v. Baby Girl, 731 S.E.2d 550 (2012) (South Carolina Chief Justice Toal discusses the history and purpose of ICWA.)

Adoptive Couple v. Baby Girl — Facts

This case a “hot topic” for Washington attorneys because it could have easily come from Washington, given that we have 29 federally recognized tribes in our state. Baby Veronica was born after her American Indian father and a mixed-race mother broke off their engagement and cut off communications. Her father was deployed to Iraq while the mother began adoption proceedings. Her father was not informed of the birth or of the adoption proceedings, but had essentially given up his parental rights to the mother. See, e.g., here, here, or here . The Court has been asked to determine if the father can invoke ICWA to block the adoption, and if so, does he meet the definition of a parent under ICWA which does not include a putative father that has lapsed on his parental rights.

Ruling? SCOTUS should uphold the rights of the Father

Yes, a non-custodial parent should be allowed to block the adoption under ICWA. But the holding here should be very narrow. First, a ruling in favor of the adoptive couple could cause an upheaval of over 30 years of tribal adoption practice under ICWA. Also, in my opinion, it could set dangerous precedent on federal pre-emption grounds. Lastly, cases involving children are normally determined under a “best interests of the child standard.” Generally, this always includes a strong preference of placement of the child with their biological parents. Here, the father has had custody of the child for nearly two years – a best interest analysis in favor of the adoptive couple is unpersuasive at this point. Transcript of Oral Argument at 25 (Justice Ginsburg questions validity of best interest analysis). The Court must be careful not to disrupt the balance of interests between tribal adoptions, state agencies, and biological parental rights.

On the other side of the argument, upholding ICWA in this case could deter potential families from adopting Indian children with absentee fathers. Mrs. Blatt, the attorney for the adoptive parents, argued during oral arguments,

If you rule in favor of the father…you’re basically banning the interracial adoption of abandoned Indian children. There’s not a single adoptive parent in their right mind who is going to … go through these Kafkaesque hoops” and “you’re basically relegating the child … to a piece of property with a sign that says ‘Indian, keep off, do not disturb.’

To counteract this, the Supremes should make this case factually distinguishable based on the military status of the father. A “good cause” type exception would allow this case to leave the corpus of ICWA case law undisturbed while still allowing a means of judicial review to cut off parental rights in scenarios such as this one.

Finding that ICWA applies, can the father avail himself of its protections? ICWA defines parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established. 25 U.S.C. § 1903(9). The nuanced facts here make this case distinguishable because paternity was acknowledged and established. The father decided to give up his rights to the mother– but he did not contemplate relinquishing all his rights to allow adoption. Compare Matter of Adoption of a Child of Indian Heritage, 543 A.2d 925, 937 (N.J.,1988) (Father took none of the steps to establish paternity, and court found his actions untimely under ICWA). The legal sufficiency of relinquishing parental rights via text message is a topic for another post but, in the interest of brevity, I assume that it isn’t enough. Therefore, under both inquiries the father’s parental rights should be affirmed by the Supreme Court.

Either way, Baby Veronica is luckier than most children because she has two families that love and want her. A formal decision is expected in June.

How do you think SCOTUS should rule in the Baby Veronica case? Tell us in the comments.

About the Author

Jennifer M. Richards. Jennifer is an Associate Attorney at Feldman & Lee, P.S. A native Nevadan, she enjoys cheering on the Nevada Wolfpack, Gonzaga, and exploring the Pacific Northwest. She occasionally blogs at Queen City Addendum, and loves to connect with other professionals on LinkedIn.

What did the Guardian Ad Litem have to say about Veronica’s best interest? Seems to me yanking a 2 1/2 year old from the only parents she had ever known was likely extremely traumatic for her. I doubt her Indian ancestors would believe this was a very wise way to handle things regardless of the parental mistakes, omissions, or whatever occurred here. Children are not property regardless of their biological heritage. Perhaps both parties can include the other side in this girl’s life for her own good as things go forward. Solomon was probably right, the least selfish of the “parents” here should be the one(s) to get the child.

Family law is a tough neighborhood. Often harsh, particularly on the children. Read IN Re C.A.M.A. from our Supreme Court (2005). My client, the grandmother, had been raising the child in Germany for five years. Child did not speak English when Dad just took her and enrolled her in school in Snohomish. We learned just how unconstiutional our grandparent visitation statutes are. Some say Dad was unfit, but my client didnt want to make that claim about her son.

This adoption case is not going to be decided on best interests, just like our third party custody cases are decided about the fitness of the parent, not the relative merits as a parent of the birth parents and other people assuming that role followed by a best interests test.

Veronica was returned to her father’s custody almost 17 months ago and is now three and a half. Yes, the father tried to contact Veronica’s bio mother during the pregnancy but she wouldn’t see him (probably at the advice of the adoption agency and their lawyers so they could later claim she had been “abandoned”) and yes, the Capobiancos paid the biological mother $10,000 above and beyond medical claims. God willing the Supreme Court will allow (now almost four year old) Veronica to remain with the Browns who are not only her natural family but certainly the only family she remembers. Usually in cases like this people come down on either of two sides… the first argue “This father never provided invormed consent. Of course he should be able to raise his own child.” Then the second group says “Even if the father’s rights were ignored it’s in the child’s best interest to remain in the only home he/she remembers”. In this case of course both arguments support Dusty and his daughter remaining together. Here are two crucial stories for anyone interested in this subject: http://indiancountrytodaymedianetwork.com//2013/05/06/fight-baby-veronica-part-i-149219 and here is part two: http://indiancountrytodaymedianetwork.com/2013/05/13/fight-baby-veronica-part-2-149336

It is really hard to see how the prospective adoptive parents succeed here. It is one thing for a man to hand his rights over to the mother with equvialent constitutional rights, another thing entirely to draw from that the presumption someone unrelated, particularly in the tribal setting, can adopt.

The fame of this case will serve as a warning to adoption lawyers to get the proceedure correct, adoptive parents to select carefully lawyers and adoptive children, and unwed fathers to acknowledge paternity early and often.

The real issue at hand for tribes and tribal people is that the strength of the ICWA built over the last fifteen or so years should be retained. Adoption of Indian children outside of the Indian community should be prevented and at all cost. Any other outcome will act to disinfranchise Indian people further. A SCOTUS decision that weakens the ICWA will amount to strengthening the “at large” federal policy of assimilation and to further reinforce the notion that treaties are somehow “old fashioned” and out of vogue. The treaties continue to exist and must be honored.

It’s ignorant to think Veronica doesn’t ‘remember’ her first family, the one that taught her to trust and love, something the Bio Dad should learn. He didn’t just give over his rights to the Bio Mom he abandoned her financially after she refused to be pressured to marry him in order to update his housing and income. My understanding is that Bio Dad joined the army in the first place because he was busted for dealing drugs in Nowata , OK ( thanks Intelus) and joining was part of the plea deal. Not quite the American Hero, or outstanding Native American, that he likes to portray and as another person pointed out, his son bought and sold 3 properties in the US and skyped home 3 times a week to his kids while serving his country in Afghanistan, so the ” I joined the army and was in Iraq” out of sight out of mind doesn’t really hold water. He self terminated, cut his ties, abandoned his daughter inutero, giving the Mother all rights. The Bio dad isn’t even the one who contacted the Cherokee courts, it was his father, that’s how much he cares. There was no Indian Family to break up. Bio dad’s blood runs thin, a native American ancestor 20 years ago or something. And cold. One doesn’thave to do a lot of investigation to get the picture. I really hope the Supreme Court takes the ‘ick’ out of ICWA

While the picture of the dad is what it may be, AP, we all know that abandonment if such a word is correctly applied is NOT the same thing as assignment. In this case, something more would be required, since there was a level of involvement by the Bio Dad not akin to pure abandonment, regardless as to how imperfect the effort was by him.

As to blood quantum, that concept was forced upon tribal people by the government under the assimilation policies that have dominated federal Indian policies. To which blood quantum was intended and will come to be used in the fashion you described…an attempt to close the book on the horrible history of this country and the original people by saying, “Look, they (Indians) no longer exist.”

Sorry but the pages have been written and justice will prevail against the domineering culture from Europe that through its own thinking / actions will go down as inadvertently destroying itself. Now that is some real intelligence, right?

People like Bio Dad is but a reflection of our society at – large. As a result and in all honesty, society must take responsibility for its miserable efforts, too. Tribes are to enforce the ICWA and it is the business of the at – large court system to honor the enforcement.

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